January 11, 2021
By Timothy Sandefur

Every election year, Americans debate, rally, and endure months of ads urging them to vote for one candidate or another. But the sad reality is that most of the rules that govern our daily lives aren’t written by elected officials at all, but are written—and enforced—by unelected employees of government agencies. We call these agencies the “administrative state,” because they enjoy extraordinary power to write rules, investigate potential violations, and hold mini-trials to decide whether people have violated those rules.

Not only does that violate the constitutional principle of separation of powers, but these agencies are not subject to the rules of evidence and procedure that apply in legal courts. And rules of “deference” also limit judges’ ability to enforce legal limits on these agencies. The result is lawmaking without either democratic accountability or meaningful constitutional control.

That problem is at the forefront of a case the Goldwater Institute is asking the U.S. Supreme Court to take. The case involves Washington State property owners who opposed a bureaucratic decision to limit their rights to use their land. The owners argued that the rules the agency was considering were so restrictive that they essentially confiscated the property—and therefore, that the rules violated the Fifth Amendment’s prohibition on taking of private property.

But Washington law doesn’t let bureaucratic agencies consider constitutional questions like that, so they couldn’t introduce their evidence. Yet when they later filed sued the agency for violating the Constitution, the court refused to hear their evidence, because state law prohibits people from introducing evidence in court if it wasn’t presented to the agency. In other words, they were caught in a catch-22.

Represented by our friends at the Pacific Legal Foundation, the property owners have asked the Supreme Court to take the case, and we, along with the Cato Institute, have joined that petition, pointing out that this is just one of the many ways that the administrative state violates the basic principles of due process.

Agencies are allowed to base their decisions on hearsay and other kinds of evidence that courts can’t use. But when someone appeals an agency’s decision, that person isn’t allowed to introduce any new evidence or challenge the hearsay that’s already in the record. That means that the judge not only ends up relying on inadmissible evidence, but can only rely on inadmissible evidence.

That violates the basic constitutional principle of due process, which guarantees everyone’s right to a fair hearing before an impartial decision-maker, whenever the government takes away his or her life, liberty, or property. The most fundamental guarantee of due process is the right to a day in court. Yet thanks to procedural rules like Washington’s, or to evidentiary rules that let agencies base their decisions on inadmissible evidence, the reality is that many individual citizens are deprived of their rights without any fair proceeding.

In a 2008 case, for example, the California Coastal Commission—one of the most aggressively powerful administrative agencies in the country—ordered a property owner to pay a $5.3 million fee for permission to build a wall to protect the land from erosion. It based this dollar figure on real estate appraisals of land more than 300 miles away—appraisals that would never have been admissible in court. But because it’s an agency, the Commission was allowed to use those appraisals—and a later court was not allowed to question whether that was legitimate. Or consider the 2016 case of an Illinois man who requested a permit to carry a concealed weapon—and was rejected based on his criminal history. He had actually been found not guilty in that case, and the other evidence the agency relied on when rejecting his application was hearsay. But he wasn’t allowed to challenge that evidence in court, or even given a hearing at all—because of the state’s deferential rules for bureaucratic agencies.

Agencies are supposed to be in charge of enforcing the law, that’s all. But courts have given them such broad authority that they actually go far beyond that role. In 2013, Chief Justice John Roberts observed that when one considers the “thousands of pages of regulations” agencies issue every year—virtually unlimited by anything elected representatives actually considered—it’s clear that agencies are the ones “really doing the legislating…[and] poking into every nook and cranny of daily life.” But the more power they have, the more responsibility and accountability they should have, too. We’re urging the Supreme Court to take up this case and make clear that agencies cannot be above the law.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.

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